It’s not over until you give up. You can still contest a will before a decision has been made by the court.
Here are some grounds for challenging a will.
The Will is invalid. Certain regulations are made to cover the validity of a will. For instance, a will is considered invalid if it’s not the most recently created will, was altered after the signature, or not executed according to the requirements under the legislation. Moreover, ambiguity over the language used in a will can make it invalid for execution.
The Will’s maker does not have the capacity or unduly influenced. This phenomenon happens frequently. According to the Successions Act 2006 (NSW), strict rules are given as to who can create a will. Everyone over the age of 18 can create a will, provided that they have the mental capacity to do so. The issue arises when the testator is elderly, ill or intellectually incapable.
The testamentary capacity refers to the ability to comprehend what a will is, to understand in general terms what they are disposing of and to have the capacity to make moral decisions involved in creating a will. If a person lacks the ability to make a will, an application can be created to have a court authorized will made, or an old one will be revoked or altered.
One can also challenge a will on the grounds of coercion by someone who influenced the creator. If a person is proven to have exerted undue influence in the form of fear, force or pressure, the will may be rejected. However, undue influence is hard to prove. Persuasion and flattery to some extent is not unlawful. The court will only consider coercion if the influence is to such an extent or if the testator’s real intentions were not followed through. These kinds of claims are oftentimes successful for those with a witness present.
A later or earlier will. A will can also be invalid if a new will is found. It could be a will that’s been recently discovered. Whatever the case, the new and legitimate will will be favored and implemented over the old one.
The will is forged. A will can be challenged if a person suspected that it was forged. However, like undue influence, it is very difficult to prove that a will is indeed forged. If you intend to challenge a will on the basis of fraud, you will have to turn up good and legitimate evidences for your claim.
Removal of trustee/executor. If the appointed trustee/executer is not fulfilling his or her duties as mandated by the law and in accordance with the directions under a will, you may request the court to revoke the grant of probate or letters of administration that are in their possession, and have another person appointed in their place.
Challenging a will is a hard and perilous journey full of hearings and learning the value of patience. You have to equip yourself with the knowledge and resources when challenging a will in NSW. I also recommend hiring a lawyer to advise and assist you with the entire process.